Macdonald v Teys Australia Distribution Proprietary Limited
[2013] QDC 139
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- Macdonald v Teys Australia Distribution Proprietary Limited[2013] QDC 139
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Macdonald v Teys Australia Distribution Proprietary Limited[2013] QDC 139
Macdonald v Teys Australia Distribution Proprietary Limited[2013] QDC 139
DISTRICT COURT OF QUEENSLAND
CITATION: | Macdonald v Teys Australia Distribution Proprietary Limited [2013] QDC 139 |
PARTIES: | LAURIE DON MACDONALD (Applicant) and TEYS AUSTRALIA DISTRIBUTION PROPRIETARY LIMITED (Respondent) |
FILE NO/S: | 1123/2013 |
DIVISION: | |
PROCEEDING: | Application |
ORIGINATING COURT: | District Court |
DELIVERED ON: | 19 June 2013 (ex tempore) |
DELIVERED AT: | Brisbane |
HEARING DATE: | 19 June 2013 |
JUDGE: | Samios DCJ |
ORDER: | 1. Order as per the draft. 2. Respondent to pay the applicant’s costs of the application to be assessed on the standard basis. |
CATCHWORDS: | WORKERS COMPENSATION – where the applicant sought an order that the respondent provide information pursuant to section 279 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld)- where the applicant sought an order that documents be provided pursuant to section 279 of the Act - where the applicant sought an order for an inspection of the subject premises- where the applicant sought a declaration he is entitled to seek damages pursuant to section 237 (1) (a) (i) of the Act for a back injury - where the applicant sought an order to strike out paragraph 22 of the defence pursuant to r 171 of the Uniform Civil Procedure Rules. LEGISLATION Workers’ Compensation and Rehabilitation Act 2003 (Qld) s 237 (1) (a) (i), 275, 279 (1) (a), 279 (1) (b), 279 (3), 318C Uniform Civil Procedure Rules rr 171, 250. CASES Alavi-Moghaddam v Woolworths [2012] QDC 98 at 33 Bell v Australia Meat Holdings [2003] QCA 209 Ley v Woolworths Limited [2013] QSX 59 |
COUNSEL: | Mr Cross for the applicant/plaintiff Mr O'Driscoll for the defendant/respondent |
SOLICITORS: | Quinn & Scattini Lawyers for the applicant/plaintiff Bruce Thomas Lawyers for the defendant/respondent |
- [1]The application before me today is an application that the applicant seeks orders that the respondent provide information pursuant to section 279 of the Workers’ Compensation and Rehabilitation Act 2003. There are specific questions for which information is sought. The applicant had sought more information than is being sought today. Some of the information that had previously been sought has been provided by the respondent. In addition, the applicant seeks documents to be provided pursuant to section 279 of the Act. Further, the applicant seeks an inspection of the subject premises so that his expert, presumably, can provide a report for the future conduct of the proceedings. In addition to those three specific applications, the applicant seeks a declaration that he is entitled to seek damages pursuant to section 237 subsection (1) paragraph (a)(i) of the Act for the back injury specified in the notices of claim for damages, dated 13 April 2012. Finally, the applicant seeks an order, pursuant to the Uniform Civil Procedure Rules 171, that paragraph 22 of the defence be struck out.
- [2]Briefly: in the first incident, the plaintiff claims he was required to pick up and place cartons of meat from one palette onto another. He claims the workplace area in which he was required to pick up the cartons was restricted, and the area could only fit two palettes wide and three palettes long. As he picked a carton up to place it onto another palette, from about 12 to 14 inches off the ground, to place it to shoulder-height, which he had to perform quickly, he twisted himself in the limited space and suffered pain in his back. He informed his employer of that incident. His employer is a self-insurer. He lodged an application for compensation. He claimed the injury was left-sided back. An incident report was completed by the respondent, and the respondent obtained an injury statement from the applicant. By correspondence dated 21st December 2011, the respondent accepted the claimant for an injury to his left side of the back as an episode of musculoligamentous strain to his left posterior chest wall.
- [3]Regarding the second incident: the applicant again advised his supervisor that he had hurt his back, again, when shrink-wrapping palettes of meat. The injury was reported to the supervisor. The applicant attended his general practitioner, and obtained a workers’ compensation medical certificate. On or about the sixth of March 2012, the applicant lodged a further application for compensation. The injury claimed for was a back injury. On or about the sixth of March 2012, the applicant provided the respondent a statement. The injury noted was left-sided back. The respondent completed an injury report form, and in this form, the injury was noted as left-side back. By correspondence dated 7 March 2012, the respondent advised that the applicant’s claim was accepted as an episode of soft tissue injury to your left posterior thoraco-lumbar spine.
- [4]The applicant attended his general practitioner on 19 November 2011 complaining of severe left back pain, and there were further attendances throughout December, January, and February. Then in February he attended his general practitioner complaining of a re-occurrence of left-sided musculoligamentous strain, thoraco-lumbar spine. To that general practitioner, he reported the onset was whilst bending over wrapping palettes of cartons at work. This attendance was on the 29th of February 2012. Thereafter, the applicant was sent, and has been seen, by a number of medical practitioners, who have provided reports.
- [5]Dr Morris, orthopaedic surgeon, diagnosed an injury to the lower thoracic spine and lower ribcage in the first incident. He diagnosed the applicant having aggravated his thoracic spinal injury in the second incident. Dr Boyd diagnosed the applicant as having a left thoracic musculoligamentous strain in the first incident; he diagnosed the applicant as suffering a chronic thoracic musculoligamentous strain in the second incident. The certificates provided by the applicant to Q-COMP medical certificates dated 9 December and 23rd December 2011 described his injury as musculoligamentous injury to the left posterior chest wall, and musculoligamentous injury to the left posterior thoraco-lumbar spine, respectively. In relation to the second incident, to Q-COMP, the medical certificates have described the injury as musculoligamentous injury to thoraco-lumbar spine – re-aggravation from wrapping palette at work.
- [6]The defendant self-insurer – and perhaps I have not been making a distinction between the defendant employer and the defendant self-insurer, but in any event, my meaning is plain – by correspondence dated 5 October 2012 provided the claimant a notice of assessment for the injuries from the first incident, being musculoligamentous injury to the left lower thoracic spine and left ribcage. An assessment of nil was made. By further correspondence dated 5 October 2012, the defendant self-insurer provided a further notice of assessment in regard to the second incident. On this occasion, the injury was described as aggravation of the thoracic musculo-ligamentous strain injury. Again, an assessment of nil was made.
- [7]On 26 October 2012, the applicant attended Dr Campbell, a neurosurgeon. Dr Campbell assessed the applicant as suffering a chronic soft-tissue musculoligamentous injury to the thoraco-lumbar spine in each incident. The applicant claims he has been unable to return to work due to severe back pain. Then on 15 October 2012, the applicant provided a notice of claim for damages pursuant to section 275 of the Act. In regard to the first incident, the injury claim was for a left posterior chest wall, which is the description of the injury accepted by the defendant self-insurer by correspondence dated 21 December 2011. Also under the letter of 15 October 2012, the applicant submitted a notice of claim in respect to the second incident. The injury claim was for a left thoracic.
- [8]The circumstances on each occasion have been detailed in these applications. The solicitors for the respondent, by letter dated 27 November 2012, advised the applicant’s solicitors that the notice of claim was compliant. Those solicitors asked questions pursuant to section 279 of the Act, and those questions were answered. Then there was disclosure in March 2013 by the respondent’s solicitors.
- [9]The submissions made to me today on behalf of the applicant is that: no reason was provided for why the defendant solicitors provided the information on 7 March 2013, in breach of section 279 subsection (3) of the Act, particularly in light that the compulsory conference was set for 13 March 2013. Nevertheless, liability has been denied. The matter did not resolve at the compulsory conference. Following the compulsory conference, the applicant’s solicitors advised the defendant’s solicitors that they intended having an engineer inspect the premises. This has been resisted. Nevertheless, today, Mr O'Driscoll of counsel, who appears for the defendant, has informed me that there is no opposition to an inspection. Nevertheless, the applicant has pursued the answer to the information sought, and the further documents. And provision of that information and documents is resisted.
- [10]The declaration and the striking out are based on the same circumstances. The effect of the defence, at this stage – that is, paragraph 22, which is sought to be struck out – is that the defendant says that the plaintiff has not complied with the requirements of the Act, and may not commence and maintain these proceedings in relation to any injury to the spine sustained in the alleged first incident, and any back injury other than an injury to the thoracic spine sustained in the alleged second incident.
- [11]The evidence before me shows that there have been many descriptions given to what has been ailing the applicant following each of these incidents. One thing that seems to be consistent from the applicant is that he hurt his back. The doctors, though, have given descriptions. Again, while these descriptions are not necessarily consistent each with the other, there does appear to be a consistent description of thoracic-lumbar spine injury. It seemed to me today that the respondent sought to submit that if the applicant’s injury were restricted to a thoracic spinal injury, then any claim for something wider than a thoracic spine injury would not be permitted to proceed, and therefore the pleading, by section 22 in the defence, should be sustained, rather than struck out.
- [12]The authorities have been cited to me today. It seems to me that Bell v Australia Meat Holdings [2003] QCA 209 is the one of most assistance. There, it was found that the plaintiff had in his relevant documentation, and in his claim, a claim for the same injury as that which had been assessed, and notified in the notice of assessment, and which was then claimed. Here, there is no suggestion that the applicant has suffered more than one injury. Clearly, there may be arguments about the nature, extent, and cause of his injury, but they are more appropriately dealt with at trial. I consider that was the approach that the Justice North took in Ley v Woolworths Limited [2013] QSC 59.
- [13]If I need to say it, the applicant has given a consistent version of events, and the symptoms as a consequence of those events. I consider it is proper that he has claimed a back injury, in light of the descriptions given by the doctors. I consider he has not limited himself, nor, necessarily, have the doctors limited him to a thoracic spine injury, as can be seen from the doctors’ reports. There is a wide description given, which I consider is encompassed by a back injury. I also consider that despite the descriptions given by the defendant self-insurer, they are not conclusive as to the injury that can be claimed for.
- [14]Therefore, dealing, perhaps with last matters first, I do consider that pursuant to the Uniform Civil Procedure Rules, rule 171, that paragraph 22 of the defence should be struck out. I consider it would delay and embarrass the continuation of these proceedings. I also consider, in the circumstances, on the evidence before me, that a declaration should be made that the applicant plaintiff is entitled to seek damages pursuant to section 237 paragraph (1) subparagraph (a)(i) of the Act for the back injury specified in the notices of claim for damages dated 13 July 2012.
- [15]I have also examined the questions, and I have come to the view that section 279 of the Act is wide enough to require answers to be given. That is, I consider the authorities show there is a broad duty to cooperate. In any event, I consider that rule 250 of the Uniform Civil Procedure Rules is also a basis for the ordering of that information to be provided. I do consider the provision of that information is necessary to decide issues in these proceedings. I accept Judge Farr’s approach in Alavi-Moghaddam v Woolworths Limited [2012] Queensland District Court 98 at 33, that an issue could be a factual or a legal issue in a proceeding justifying making orders. As I have said, I’ve examined the requests, and I do consider they are appropriate, and necessary that they be answered in this case.
- [16]In addition, I consider the documents sought should also be provided. I again proceed under section 279 subrule (1) paragraph (a). If that is not wide enough, then I would proceed under paragraph (b), giving it a broad definition. I consider that on a statutory construction basis. The obligation is upon the parties to cooperate in relation to a claim, and it is not limited to what is set out in subparagraphs (a) and (b), because the section says in particular by those matters mentioned in subparagraphs (a) and (b). I am also of the view that it is appropriate, as has been conceded, that there be a inspection.
- [17]Therefore, for all those reasons, I have the draft order before me.
- [18]So there will be an order as per draft, initialled by me and left with the papers.
- [19]There were five matters that were the subject of the application before me today. There was the provision of the information, the provision of the documents, the inspection, the declaration, and finally, the striking out of paragraph 22 of the defence. Clearly, the respondents cooperated by not opposing the making of orders in relation to the inspection, and also withdrew the application to adjourn the application, because the declaration that was sought was notified only very recently, certainly not allowing the two clear days. Notwithstanding that cooperation, I am of the view that the respondent has caused this application to be made and pursued, and the application has been brought because of unreasonable delay by the respondent.
- [20]That is, that I accept the submissions made by the applicant in relation to costs. Clearly, the respondent has not responded as I have found it should have in relation to the requests for information, documents, the inspection, and has ranged in its defence some time ago this allegation that I have found is against the weight of the evidence – that is paragraph 22 of the defence, in my view, had to be struck out, otherwise it was going to delay the further prosecution of this claim, and unreasonably so, and lead to unnecessary costs.
- [21]Therefore, I assume I have power under section 318C of the Act, and act under that section, to order the applicant’s costs be paid by the defendant on the standard basis. If I am wrong about that, then I certainly would take the view that I have a discretion, and in this case, the costs should follow the event, and despite the concessions made by the defendant at the commencement of this application, nevertheless, this application had to be brought by the applicant to gain the outcome that the applicant has gained today. Bluntly, the respondent was not going to go easy, and while those concessions were made, nevertheless, the application was resisted, and the respondent failed. And on that basis, that is why I say costs would follow the event. Therefore, I order the respondent to pay the plaintiff’s costs of the application, to be assessed on the standard basis.
- [22]Therefore, the respondent to pay the applicant’s costs of the application, to be assessed on the standard basis.